About this weblog

Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

Enter now Ralph Oman, who was previously Register of Copyrights. Mr Oman has now filed an amicus brief in the Aero case, in which he argues that he is batshit insane. No, wait, that's what techdirt is saying; what Oman is saying is that all new technologies should have to go get Congressional approval in order to exist. Upsetting an existing business model is not allowed, unless Congress first says it's allowed. Or so Oman appears to be arguing:

Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies. That core principle is at the heart of the Copyright Act. Congressional intent would be undercut by any decision that would sanction the use of technologies which could be used indirectly to undermine its goals.

I just... I don't even... what the ever-loving grace have you been smoking, mate? (h/t Boingboing for the original pointer)

September 20, 2012

In a direct blow to Amazon, Wal-Mart has announced that it will stop carrying all models of the Kindle e-book reader. Significantly, the chains (Wal-Mart and Sam's Club) are still going to carry iPads and Nooks, making clear that this is not a move about e-book readers so much as it is a move against Amazon and the inroads Amazon is making against retail marketers everywhere. To be honest, I wouldn't be surprised if they also dropped Nook though its impact on their bottom line is minuscule when compared to Amazon's.

Back in May I noted that Target was going to drop Kindles from its retail shelves; I'm just surprised that it took Wal-Mart this long to follow suit. It's pretty clear that any retailer that maintains a physical store presence is going to be forced to take some kind of stand with respect to Amazon. And I expect that the majority are going to line up against them. Amazon hasn't done anything to win friends in the retail space and has cut into pretty much every brick-and-mortar retailer's turf in some way or another.

E-books are particularly tricky here in that they're always going to be bought on-line; you just won't go to a store in order to buy an e-book in today's environment. (*) However, Amazon presents e-books as part of its buying ecosystem and many aspects of that system compete directly with Wal-Mart's merchandise lines. Thus e-books are a competitive hook that retailers need to be careful about.

(*) As a brief aside, if I was running a retail book business I would be trying to get people into my stores to buy e-books. Set up an author talk, get people to bring their readers, and get a code for a discounted e-book. Arrange with the publishers to get a few points back on any sale where someone enters one of the codes. Heck, I'd even sell them readers at the event, with a free card to my store's book-purchasing club/loyalty program. But I digress.

As Jones tells it, theft is rife among magicians. They copy each others' tricks and sometimes outright 'steal' a performance piece. In this case a magician performing as Gerard Bakardy appeared to have stolen - in the sense of copied and performed in an altered form - one of Teller's signature tricks. The signature trick was the subject of a 1983 copyright registration that Teller made, in an effort to protect not the trick itself, but the performance art wrapped around the trick. Teller willingly reveals that he has used at least three different methods to do the trick in dispute - but the method is not what the audience cares about. The audience cares about a performance, and Teller is asserting that his performance (of the trick) is a unique artistic creation, as worthy of legal protection as any other act of artistry.

According to Jones, Teller has in the past relied on professional courtesy when confronted with other magicians who have lifted his tricks, rather than legal protections. In this case, however, Bakardy was not just performing the trick, but offering to sell its secrets to anyone who would meet his price. Also, Bakardy was unwilling to extend professional courtesy. When Teller contacted him, the story goes that Bakardy asked for more money and favors than Teller was willing to pay.

Intellectual property protection for something like the performance of a trick is a difficult thing - to begin with most performers don't have the money to pursue a court case against someone who has lifted the trick and even if they do the case itself will be public which may end up revealing secrets the magician would rather didn't get into wide circulation. As a result legal protections such as Teller's copyright may not be worth the paper they're printed on. Nevertheless, Teller sued... and Bakardy vanished. No one has even been able to serve him with proper notice of the lawsuit, though Teller got permission to serve notice by email (which has gone unanswered).

Whether Teller's copyright protection will stand up in court is a mystery yet to be revealed.

To begin with, you should know that Phipps is himself a strong proponent of open source development (his column is called "Open Sources", for example) and a recent opponent of software patents in part because they interfere with open-source development. So when he says there might be something good in the legislation we already have around software patenting my eyebrows tend to go up.

According to Phipps, the working paper titled "Software Patents and the Return of Functional Claiming" from Lemley (SSRN link here) will propose that the problem with software patents is what lawyers tend to call "claim construction." That is, the problem is not with what's being patented (software) but with the things to which the patent is supposed to grant a monopoly. Badly constructed (overbroad) claims attempt to protect not the (software) machine, nor the steps (algorithm) it performs but the result of executing those steps on that machine - the goal.

Lemley's argument (and I haven't read the paper yet, so take this for what it's worth) is that the USPTO is not correctly applying the already existing Patent Act of 1952 and if in fact the Office would do that, then it would reject these patents with overbroad claims, or at least force patent applicants to redraw their claims more narrowly. That wouldn't immediately solve everything, not least of which are the ongoing problems with disgracefully shoddy lack of prior art inclusion in software patents and the pervasive confusion over sections 101 vs 103 of the law. But it would be a huge step forward.

One final caveat to keep in mind here: Lemley's thesis is in a "working paper". That means it hasn't yet been subjected to the kinds of critical review that more formal publication might require. I suspect we'll see people who believe that Lemley is misinterpreting the 1952 Act. Still, it's a blessing to have fresh ideas for improving the situation, particularly ideas that don't require radical reforms or rafts of new legislation.

September 12, 2012

More Finger-Pointing in the E-Book Price Wars

Observant e-book buyers have mailed to let me know that some of the effects of the e-book price-fixing settlement are starting to be seen. When you buy e-books now in some online stores (notably Amazon) you can see text stating that the book's price is "set by the publisher" or "sold by $publishername." Other e-books, from companies that signed the settlement, are starting to come down in price as well. If you see something interesting in this space do drop me a note.

Over at Boingboing, Cory Doctorow has a long paean of admiration for David Byrne's new book "How Music Works." Like me, Doctorow is a fan of Byrne's thinking as much as his music. The review describes the book's breadth and depth and positively glows with admiration for the insights Byrne has accumulated over his career, with respect to such issues as how physical spaces and production formats can have gigantic impacts on the artistry that gets produced.

I confess that I had not planned to read this book soon, having added it to my holiday wishlist. Perhaps I'll have to revise that plan.

The Only Winning Move Is Not To Play

WIRED offers up an amusing Wargames-themed info-graphic mapping the current patent war between Apple and various proxies for Google (Motorola and Samsung primarily). Click on a country to get a pithy summary of what each player has going in the current situation, but realize that the main event has yet to start. And when it does we are all going to be sadder and sorrier.

To understand why this is A Big Deal, let me back up a couple steps. First, everyone agrees that piracy in gaming is a huge problem. Game publishers hate having their titles pirated - it's bad on all platforms but apparently worst on PCs. Pirated titles mean people just don't pay for games and people who didn't pay end up consuming resources such as server space and bandwidth that is supposed to be paid for by those game sales. Honest players also hate game pirates - who likes feeling like the other guy got away with something when you were an honest customer? In addition, online gaming can be hurt by people who pirate games because some who play by the rules end up competing with (and usually losing to) people who have pirated/cracked games and can use that to cheat.

Unfortunately, gaming companies - particularly big names such as Blizzard and Ubisoft - have responded to piracy threats by introducing more and more restrictions on what their customers can do, usually in the form of DRM. Big-publisher games today often feature what's called "always on" DRM, meaning that your game must constantly authenticate itself with the company's servers. It's not enough just to type in a CD key or other one-time validation anymore. And players hate this. Boy oh boy do they hate it. But even when they hate it, games with always-on DRM can still be big successes. Blizzard's recent Diablo 3 title has made millions even though it requires a constant live connection to a server even if the player is operating solo. No server, no game, even though you think you bought and own that copy of Diablo 3. Blizzard is no doubt crying all the way to the bank.

So when a big-name publisher - in this case Ubisoft - backs away from always-on DRM, it's huge news. And in the course of getting raked over the coals by RPS that's what Ubisoft appears to have done. The interview is full of phrases like "we listened to feedback" and attempts to cast the decision in the best possible light. At the same time, Ubisoft is refusing to release any of the numbers on which it based past decisions, including numbers on title piracy and the supposed anti-piracy effectiveness of always-on DRM.

To be fair, Ubisoft is far from the only company that won't give out numbers in this discussion. And they are not going as far as Macmillan did - Ubisoft games will still require traditional one-time activations and use activation-based DRM, which can limit the number of machines on which you can play a given game. But as RPS say, this is pretty much exactly what (honest) players have been asking for since the whole issue blew up: we don't mind buying the game and are willing to jump through a limited number of hoops to show we're honest. But don't make it overly onerous, because all that does is make honest players long for the easy 'out' that piracy offers.